As filed with the Securities and Exchange Commission
on April 6, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Evaxion Biotech A/S
(Exact name of registrant as specified in its
charter)
The Kingdom of Denmark
(State or other jurisdiction of incorporation
or organization)
Not Applicable
(IRS Employer Identification No.)
Dr. Neergaards Vej 5F
2970 Hørsholm
Denmark
(Address of Principal Executive Offices) (Zip
Code)
Incentive Scheme pursuant to the Appendices
to the Articles of Association of Evaxion Biotech A/S
(Full title of the plan)
Lars Staal Wegner, MD
Chief Executive Officer
Evaxion Biotech A/S
Dr. Neergaards Vej 5F
2970 Hørsholm
Denmark
(Name and address of agent for service)
+45 53 53 18 50
(Telephone number, including area code, of agent
for service)
Copies to:
Dwight A. Kinsey, Esq.
Rina R. Patel, Esq.
Duane Morris LLP
230 Park Ave, Suite 1130
New York, NY 10169
(212) 818-9200
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Exchange Act. (Check one):
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¨ Large accelerated filer
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¨ Accelerated filer
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x Non-accelerated filer
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x Smaller reporting company
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x Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities
To Be Registered*
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Amount
To Be
Registered (1)
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Proposed
Maximum
Offering Price
Per Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Ordinary shares, DKK 1 nominal value per share
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2,228,964
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(2)
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$5.46
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(3)
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$12,170,143
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(2)
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$1,328
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Ordinary shares, DKK 1 nominal value per share
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2,579,112
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(4)
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$0.16
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(5)
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$412,658
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(5)
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$46
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Total
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4,808,076
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$12,582,801
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$1,374
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*
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The ordinary shares registered hereby
may be represented by the Registrant’s American Depositary Shares (“ADSs”), each of which represents one ordinary
share. ADSs issuable upon deposit of the ordinary shares registered hereby have been registered under a separate registration statement
on Form F-6 (Registration No. 333-252038).
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933,
as amended (the “Securities Act”), this registration statement (this “Registration Statement”)
shall also cover any additional ordinary shares of the Registrant that become issuable under the Incentive Scheme pursuant to the Appendices
to the Articles of Association of Evaxion Biotech A/S (the “Incentive Scheme”), by reason of any share dividend, share
split, bonus issue, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would
increase the number of outstanding ordinary shares.
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(2)
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Represents 2,228,964 ordinary shares available for future
issuance under the Incentive Scheme.
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(3)
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This estimate is made pursuant to Rule 457(c) and Rule 457(h) of the Securities Act solely for purposes
of calculating the registration fee. The Proposed Maximum Offering Price Per Share for shares available for future grant is the average
of the high and low prices for the registrant’s common stock as reported on the Nasdaq Capital Market on April 5, 2021, which is
$5.46.
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(4)
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Represents 2,579,112 ordinary shares subject to outstanding
awards under the Incentive Scheme.
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(5)
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This estimate is made pursuant to Rule 457(h) of the Securities
Act for purposes of calculating the registration fee. The price per share and aggregate offering price are calculated on the basis of
$0.16, the weighted average exercise price per share of the shares subject to outstanding awards under the Incentive Scheme.
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Proposed sale to take place as soon after the
effective date of this
Registration Statement as awards under the plans
are granted and/or exercised.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form
S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the “Commission”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The information incorporated by reference herein
is considered to be part of this Registration Statement, and later information filed with the Commission will update and supersede this
information. The following documents filed by the Registrant with the Commission are incorporated herein by reference:
(a) The Registrant’s prospectus dated February 4, 2021, filed with the Commission on February 5, 2021 pursuant to Rule 424(b)(4) under the Securities Act; and
(b) The description of the Registrant’s ordinary shares and American Depositary Shares contained in the Registrant’s registration statement on Form 8-A (File No. 001-39950), filed by the Registrant with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on January 26, 2021, including any amendments or reports filed for the purpose of updating such description.
All documents that the Registrant subsequently
files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration
Statement, which indicates that all of the ordinary shares offered have been sold, or which deregisters all of such shares then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing
of such documents.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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According to the Danish Companies Act, the general
meeting is allowed to discharge the Registrant’s board members and members of the Registrant’s senior management from liability
for any particular financial year based on a resolution relating to the financial statements. This discharge means that the general meeting
will discharge such board members and members of the Registrant’s senior management from liability to the Registrant; however, the
general meeting cannot discharge any claims by individual shareholders or other third parties.
Additionally, the Registrant has entered into
agreements with its board members and members of its senior management pursuant to which, subject to limited exceptions, the Registrant
has agreed, to indemnify such board members and members of its senior management from civil liability, including (i) any damages
or fines payable by them as a result of an act or failure to act in the exercise of their duties currently or previously performed by
them; (ii) any reasonable costs of conducting a defense against a claim; and (iii) any reasonable costs of appearing in other
legal proceedings in which such individuals are involved as current or former board members or members of senior management.
There is a risk that such agreement will be deemed
void under Danish law, either because the agreement is deemed contrary to the rules on discharge of liability in the Danish Companies
Act, as set forth above, because the agreement is deemed contrary to sections 19 and 23 of the Danish Act on Damages, which contain mandatory
provisions on recourse claims between an employee (including members of the Registrant’s senior management) and the Registrant,
or because the agreement is deemed contrary to the general provisions of the Danish Contracts Act.
In addition to such indemnification, the Registrant
provides its board members and senior management with directors’ and officers’ liability insurance.
Insofar as indemnification of liabilities arising
under the Securities Act may be permitted to board members and senior management or persons controlling the Registrant pursuant to the
foregoing provisions, the Registrant has been informed that, in the opinion of the Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
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Item 7.
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Exemption From Registration Claimed.
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Not applicable.
The undersigned hereby undertakes:
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1.
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The undersigned Registrant hereby undertakes:
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a.
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To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that: paragraphs (1)(a)(i) and (1)(a)(ii)
above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
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b.
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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c.
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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2.
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in a registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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3.
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under “Item 6—Indemnification of Directors and Officers,” or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Hørsholm, Denmark, on this 6th day of April, 2021.
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Evaxion
Biotech A/S
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By:
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/s/ Lars Staal Wegner
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Name:
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Lars
Staal Wegner, MD
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each individual whose signature appears below constitutes and appoints Lars Staal Wegner, M.D., Niels Iversen Møller M.D. and
Glenn S. Vraniak, and each of them, individually, as his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) or supplements to this Registration Statement, and registrations filed pursuant
to Rule 462 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as
he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents or any of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on
the dates indicated.
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Name
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Title
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Date
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/s/
Lars Staal Wegner, MD
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Chief
Executive Officer
(Principal Executive Officer)
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April
6, 2021
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Lars Staal Wegner, MD
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/s/
Glenn S. Vraniak
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Chief
Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
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April
6, 2021
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Glenn S. Vraniak
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/s/
Marianne Søgaard
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Chairperson
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April
6, 2021
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Marianne Søgaard
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/s/
Helen M. Boudreau
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Director
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April
6, 2021
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Helen M. Boudreau
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/s/
Roberto Prego
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Director
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April
6, 2021
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Roberto Prego
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/s/
Steven Projan
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Director
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April
6, 2021
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Steven Projan
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/s/
Jo Ann Suzich
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Director
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April
6, 2021
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Jo Ann Suzich
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SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE
OF REGISTRANT
Pursuant to the requirements of the
Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Evaxion Biotech A/S
has signed this Registration Statement on April 6, 2021.
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EVAXION
BIOTECH A/S
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/s/
Glenn S. Vraniak
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Name:
Glenn S. Vraniak
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Title:
Chief Financial Officer
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